The GOP's Obsession with Tort Reform | Jackson Free Press | Jackson, MS

The GOP's Obsession with Tort Reform

As the health-insurance reform debate swirls, Gov. Haley Barbour is claiming that most Americans are actually looking for tort reform, not a government-guaranteed insurance option, to lower their health-care costs.

"Fortunately, the majority of folks want common-sense solutions—like tort reform—that will lower costs without diminishing the quality of care or costing hundreds of billions of dollars that we don't have," Barbour stated in a Sept. 9 Republican Governors Association leadership statement on health care.

As the new chairman of the RGA, a group committed to defeating Democratic governors across the country, Barbour is touting tort reform as central to the argument on reducing medical costs, which have skyrocketed since the 1970s.

"[F]olks can't understand how a proposal proponents claim will control health care costs doesn't include tort reform. After all, litigation and the resulting practice of defensive medicine add tens of billions to the cost of health care," Barbour told the Washington Examiner in August.

Barbour, a wealthy former lobbyist for insurance companies and other corporations, says H.R. 3200 goes "too far, too soon, too fast, and will cost too much."

The Pesky Details

The governor uses his version of Mississippi's experience with tort reform as an example of how to reduce costs by preventing "lawsuit abuse" in medical malpractice cases. He claims that it worked here, because medical liability insurance costs have dropped, and doctors have received premium rebates. Medical malpractice lawsuits fell almost 90 percent, and doctors quit leaving the state, he told the Examiner.

In 2004, at his urging, the state Legislature passed House Bill 13, the Tort Reform Act of 2004. The bill nailed down a temporary $500,000 cap on pain-and-suffering damages in medical malpractice cases and placed a $1 million cap on such damages in all other cases.

Organizations from Public Citizen, a consumer watchdog group, to the non-partisan Government Accounting Office of Congress, provide another view, however—that medical malpractice rates tend to follow the stock market, in which insurance companies heavily invested over the last 10 years. Public Citizen notes an artificial drop in insurance prices in compared to the rise of stock-market prices, and noticed a sharp increase in prices in 2001 after the market tanked.

Republicans say tort reform will successfully lower health-care costs by reducing doctor's medical-malpractice premiums. Barbour says it has made a big difference to malpractice insurance costs in Mississippi.

"In Mississippi, we passed comprehensive tort reform in 2004, partially to stop lawsuit abuse in the area of medical liability. It worked. Medical liability insurance costs are down 42 percent, and doctors have received an average rebate of 20 percent of their annual paid premium," he said in the August article.

But a 2006 Congressional Budget Office report finds small connection between a 20 percent lowered premium and the actual delivery of lower health-care costs.

The report was the result of CBO's analysis of the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2003, designed to lower premiums for medical malpractice insurance nationwide by an average of 25 percent to 30 percent from the levels likely to occur under current federal law. The CBO found that tort limits such as caps on non-economic damages, punitive damages and changes to rules governing the treatment of collateral sources of damages did reduce malpractice insurance premiums, but doctors apparently are in no position to pass many of those savings on to consumers.

"A reduction of 25 percent to 30 percent in medical malpractice premiums would not, by itself, have a significant impact on total health care costs," the report states.

"Malpractice costs amounted to an estimated $24 billion in 2002, less than 2 percent of overall health care spending. Thus, even a reduction of that magnitude in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small."

Some Mississippi patients certainly don't seem to recognize the improvement: "Are they really trying to say that my medical costs have gone down?" asked Jackson resident Amanda Starnes, a diabetes victim profiled in a recent Jackson Free Press story. "I guess the $10,000 in debt I've accrued could have been $10,002, right? Somehow, I don't see the difference."

The Fleeing-Doctors Myths

Barbour also attempts to link the number of medical liability lawsuits against Mississippi doctors with the high rate at which doctors allegedly abandoned the state in favor of more profitable states. Doctors, he claimed, "have quit leaving the state and limiting their practices to avoid lawsuit abuse."

But non-partisan facts show that doctors were never really leaving the state in the first place. A 2003 Government Accountability Office report, "Medical Malpractice: Implications of Rising Premiums on Access to Health Care," took a hard look at five medical "crisis" states—Mississippi, Nevada, Pennsylvania, West Virginia and Florida—and dismissed reports of doctor emigration from states.

Information compiled by the American Medical Association—which supports tort reform and President Obama's vision of health reform—shows that the number of physicians in Mississippi rose steadily in years leading up to tort-reform legislation in 2004, and even slowed its increase following 2004.

From 2004 to 2005, the state actually recorded no increase over the 5,872 doctors counted in 2004, and added only 18 new physicians in 2006. The year 2007 reflected an increase of 71 physicians—still less than the 145-increase between 2000 and 2001 and the 99-doctor increase between 1998 and 1999. Even the time between 2002 and 2003—arguably the years of the worst tort abuse, according to tort-reform proponents—experienced a growth in the state doctor population of 140.

"Although some reports have received extensive media coverage, in each of the five states we found that actual numbers of physician departures were sometimes inaccurate or involved relatively few physicians," the reported the GAO, which also blamed faulty, superficial reporting by media in Mississippi and other states that pushed the political myths spread by tort-reform proponents.

The Jackson Free Press reported, for instance, in a 2004 cover story about the "manufactured crisis" of "jackpot justice," that the GAO had called out Mississippi's media, in particular, for being lazy on the tort-reform topic, leaving themselves easy targets for incomplete data. The state's media, including The Clarion-Ledger, repeated phrases such as "lawsuit abuse" and "jackpot justice" without question in headlines and news stories, and used tort-reform proponents' example of lawsuit caps in California as an example of reform that worked—without including that insurance rates did not fall there until the state also regulated the insurance companies.

H.R. 3200 would expand health-insurance coverage and create a health-insurance exchange under the guidance of the federal government that creates a marketplace for individuals and small employers to compare insurance plans. It also issues affordability credits to help low-income and middle-income customers buy insurance. H.R. 3200 also contains a new government-run insurance plan, known as "the public option," to offer competition to insurance companies who boast huge profits by cherry-picking from a list of mostly healthy customers with few medical risks.

The bill would allegedly bring some form of insurance coverage to Mississippi's roughly half million residents who have neither insurance or public health-care coverage.

Obama's Compromise

The Republican obsession with tort reform was never clearer than during President's Obama speech before the joint session of Congress to rally for health-insurance reform. The Washington Post reported that when he said the words "tort reform," it was one of the few times that Republicans jumped to their feet with applause during the president's passionate speech about people needing health insurance coverage.

But they quickly piped down; Obama wasn't calling for the open-ended style of tort reform that GOP leaders such as Barbour crave. Instead, he is looking for a solution that would lower medical malpractice rates without lowering the rights of patients who are harmed by bad medical practices—a compromise that does not seem to interest tort-reform advocates such as Barbour.

Obama said he will ask the U.S. Department of Health and Human Services to create experiments to figure out what will work, without harming consumers.

White House officials later told The Washington Post that proposals could include requiring patients who plan to sue to first get their situation certified by a panel of medical experts to ensure that it has merit. Or, perhaps the states could institute a program allowing doctors to disclose errors early, apologize and negotiate a fair settlement with the patient, thus avoiding costly lawsuits. The White House plans to offer grants for the developments of such programs, but has not yet disclosed dollar amounts.

So far, though, such ideas are not codified in the bills on the table, according to Republicans.

Sen. Max Baucus, chairman of the Senate Finance Committee, released the Senate version of the contentious health-care reform bill H.R. 3200 last week, with no immediate Republican support, despite the bill being an obvious concession to GOP demands, according to health-care reform advocates.

The Baucus bill is an insurance-industry favorite, with major industry stocks rising an average of 2.5 percent with Baucus' announcement. The Republican Party, for its part, stands steadily against the public-insurance option provided by H.R. 3200, seeing it as the first step in the eventual removal of private insurance from the health coverage market (The public option, like Social Security, will be too popular for the public to resists, supporters say.)

The Baucus bill has no such option, however, and it concedes to insurance companies on other levels by also allowing insurers to charge up to five times as much for some enrollees, based on age.

The Republican Party, so far, seems to be uninterested in compromise, regardless of what Democrats offer; it is firmly against the Baucus bill and every bill Democrats in both the House and Senate have so far submitted, and have adopted no widely accepted health-care reform plan of their own.

Marguerite Higgins, senior editorial services association with the conservative Heritage Foundation, said Republicans have yet to select a bill that fully implements the GOP's wishes on health care: "There are a few (bills) out there, but there hasn't been one that's been really coming out in front," Higgins said.

Michael Franc, vice president of government relations at the Heritage Foundation, said Republicans, being the minority party, are not in a position to propose major bills, but are currently more united in what they do not want in health-care reform.

"They want the states to play a more robust role in leading the reform effort, and they want to reform malpractice issues. These are the broad areas," Franc said. "But what they don't want is to expand Medicaid, they don't want to create a new entitlement program for anyone, and they don't want new mandates."

Previous Comments


Tort reform is just another ruse from Gov. Barbour. A story in the Times today goes with a larger overall impact from medical malpractice suits. But even this higher $60 billion figure is small compared to overall health care spending, which is about $2.2 trillion a year. Considering that health insurance premiums are increasing at about 6 percent a year, a reduction of 0.5 percent is not effective reform. Whether it's tort reform or his argument that the United States can drill its way into energy independence, Barbour never lets pesky facts get in the way of providing an "alternative" to real reform.

Brian C Johnson

Any bill that is produced that does not include real tort reforms can not be taken seriously. At this very moment, on the cover of the Tampa Bay Yellow Pages, there are three different advertisements for three different malpractice firms. JUST ON THE COVER! On my way to work, I see SIX roadside billboards, advertising the services of malpractice attorneys. This along a four mile stretch of northbound 275. If you don't think physicians think about these things, you are wrong. I know I do. I know my colleagues do. What a shame. You can bet I am going to order all of the tests in the book to CMA. I am not about to give away what took me over a decade and a half to earn. Not a chance. The arguments against real tort reforms are old, tired, and stopped holding water a long time ago. Christopher Russo, M.D. University of Michigan Medical School '94


The tort reform is not helping with health care cost at all. And as far as the cap Gov. Barbour put on tort reform. How would he feel if his doctor only had to pull a blood test to check his PSA and waited 2 years to do it because he said it was all in your head. By then the cancer had spread outside your prostate. Then you acted a fool and decided you would give this doctor one more chance. Then 3 years later you had a problem and he kept saying it was a toe infection to get med., you finally found your own specialist because he wouldn't. By then the melanoma had gone to deep. I will die from this and no amount of money will stop that. But it can get my wife out of medical debt and your mesley $500 will leave her nothing. Live in my shoes and see if you feel the same way. By the way I am only 51.

faye granger

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